Clause 38

Despite anything in this Part, if, in the course of any appeal, or, in the case of a reserved judgment in any appeal, at any time before delivery of the judgment, any member of the Board hearing the appeal resigns or is unable, through illness or any other cause, to continue to hear or to determine the appeal, the remaining members of the Board (if 2 or more), must hear and determine the appeal unless the parties object.(2) In subsection (1), the Board is deemed to be duly constituted for the purposes of the appeal despite the member’s resignation or inability to act.(3) Despite section 78(14), in a case under subsection (1) —

where there are more than 2 members of the Board remaining, the appeal is to be decided in accordance with the decision of the majority of the remaining members of the Board and, if there is an equality of votes, the Chairman of the Board or, in the Chairman’s absence, the member presiding has a second or casting vote; or

where there are only 2 members of the Board remaining, the appeal is to be decided in accordance with the unanimous decision of both members.(4) The appeal must be reheard —

if the parties do not consent to the proceedings continuing before the remaining members of the Board under subsection (1); or

if the appeal is heard or determined by only 2 remaining members of the Board and they are unable to reach a unanimous decision.”.